Land and Environment Court New South Wales Medium Neutral Citation: GV Nominee No 1 Pty Ltd v Central Coast Council [2021] NSWLEC 1230 Hearing dates: Conciliation conference on 23 April 2021 Date of orders: 6 May 2021 Decision date: 06 May 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to development application DA/465/2020 lodged with Central Coast Council on 18 May 2020 in relation to development for a 95 residential lot subdivision (staged) with two (2) stormwater management facility lots at Lot 149 DP 1256521, also known as 5 Scribbly Gum Street, Berkeley Vale, subject to conditions in the annexure marked "A" and in accordance with the plans marked "B" to this judgment. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7(1) Environmental Planning and Assessment Regulation 2000, cl 77 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Coastal Management) 2018, cl 11 State Environmental Planning Policy (Koala Habitat Protection) 2020 State Environmental Planning Policy No 55 – Remediation of Land Threatened Species Conservation Act 1995 Wyong Local Environmental Plan 2013, cll 2.3, 2.6 Texts Cited: Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (December 2020) Wyong Development Control Plan 2013 Category: Principal judgment Parties: GV Nominee No 1 Pty Ltd (Applicant) Central Coast Council (Respondent) Representation: Counsel: J Farrell (Applicant) N Ikners (Solicitor)(Respondent) Solicitors: Minter Ellison (Applicant) Central Coast Council (Respondent) File Number(s): 2020/285401 Publication restriction: No Judgment 1. COMMISSIONER: GV Nominee No 1 Pty Ltd (the Applicant) has appealed the deemed refusal by Central Coast Council (the Respondent) of its development application (DA/465/2020) which seeks consent for a 97 lot staged subdivision of land and associated works (the Proposed Development) at 5 Scribbly Gum Street, Berkeley Vale, also identified as Lot 149 in DP 1256521 (the Subject Site). 2. The Subject Site is R2 Low Density Residential under the provisions of cl 2.3 of Wyong Local Environmental Plan 2013 (WLEP), and pursuant to the provisions of cl 2.6 of WLEP the Proposed Development is permissible within that land use zone. The development application is made with owners' consent. 3. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act. 4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 23 April 2021, and I presided over the conciliation conference. 5. The conciliation conference was convened in a manner consistent with the Court's COVID-19 Pandemic Arrangements Policy (the Policy). A site view was not undertaken at the commencement of the conciliation conference. 6. At the conciliation conference, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant's development application, subject to conditions. 7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the Parties' decision if the Parties' decision is a decision that the Court could have made in the proper exercise of its functions. 8. The Parties have advised that there are jurisdictional matters that must be satisfied in order for the Court to have power to grant consent to the Proposed Development, and that these requirements have been satisfied as follows: 1. the Subject Site is mapped under State Environmental Planning Policy (Coastal Management) 2018 (SEPP Coastal Management) as not containing coastal wetlands and littoral rainforests area. The Parties have considered the requirements in SEPP Coastal Management as they apply to the Subject Site. They have confirmed, and I am satisfied, that: 1. in relation to the provisions of cl 11 of SEPP Coastal Management concerning coastal wetlands and littoral rainforests area the proposed development will not significantly impact on 1. the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or 2. the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest; 1. the Applicant's development application, as amended, is compliant with the provisions of SEPP Coastal Management. 1. In relation to the provisions of State Environmental Planning Policy No 55 - Remediation of Land (SEPP55), the Parties have confirmed, and I accept, that they have considered whether the Subject Site, which is remnant bushland, is contaminated. On the basis of geotechnical investigations undertaken I am satisfied that the Subject Site is suitable for the Proposed Development which is for a residential use as there is no evidence of contamination on the Subject Site, and the provisions of cl 7(1) of SEPP55 are satisfied. 2. In relation to the provisions of State Environmental Planning Policy (Koala Habitat Protection) 2020 (Koala SEPP) the Parties advise, and I accept, that consistent with an assessment undertaken by AEP dated 13 May 2020, there is no evidence that core koala habitat exists on the Subject Site and hence there is no need for a koala plan of management to be prepared. 3. In relation to the provisions of WLEP: 1. as required under cl 2.3(2), regard has been had to the objectives of the R2 Low Density Residential zoning of the Subject Site; 2. subdivision of the Subject Site is permissible with consent pursuant to the provisions of s 2.6 of WLEP with which it complies. 1. In relation to the provisions of the Threatened Species Conservation Act 1995 (TSC Act), on 27 July 2017 the CEO of the NSW Office of Environment and Heritage issued Biobanking Statement 35 (BS35) pursuant to s 127ZL of the TSC Act. This statement applies to the Applicant's development application (DA/465/2020), except for any direct or indirect impacts of the Proposed Development on the White-bellied Sea Eagle. The Applicant has purchased and retired all ecosystem credits and satisfied the conditions of Schedule 2 of BS35. 2. The Applicant's development application was referred to, and concurrence was requested from, the NSW Rural Fire Service (RFS) and the Natural Resources Access Regulator (NRAR), and in relation to this: 1. the NSW RFS provided general terms of approval (GTAs) that have been incorporated into the proposed conditions of consent that accompanied the agreement of the Parties; and 2. the NRAR advised that no controlled activity approval was required from it as all works under the Proposed Activity would take place at a distance of more than 40m from any identified wetland. 1. The Proposed Development has been notified consistent with the provisions of Wyong Development Control Plan 2013 (WDCP) and cl 77 of the Environmental Planning and Assessment Regulation 2000, and in the opinion of the Respondent the matters raised in the submissions have been considered in reaching an agreement with the Applicant in this matter. 2. The Proposed Development complies with all relevant controls of WDCP or if it does not comply with any provision then, pursuant to the provisions of s 4.15(3A) of the EP&A Act, the Proposed Development provides reasonable alternative solutions that achieve the objects of those controls for dealing with the relevant aspect of the development and in doing so merits application of flexibility in the application of those provisions. 3. The Parties agree, and I accept, that the potential impacts of the Proposed Development have been assessed, and are acceptable, for the purposes of s 4.15(1)(b) of the EP&A Act. 1. There are no other jurisdictional prerequisites that must be satisfied before the Court can exercise the power to determine the appeal under s 4.16 of the EP&A Act. 2. Having considered the advice of the Parties, provided above at [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied. 3. I am further satisfied that the Parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 4. As the Parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the Parties' decision. 5. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties. 6. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to development application DA/465/2020 lodged with Central Coast Council on 18 May 2020 in relation to development for a 95 residential lot subdivision (staged) with two (2) stormwater management facility lots at Lot 149 DP 1256521, also known as 5 Scribbly Gum Street, Berkeley Vale, subject to conditions in the annexure marked "A" and in accordance with the plans marked "B" to this judgment. ………………………….. M Chilcott Commissioner of the Court Annexure A (376374, pdf) Annexure B Part 1 (38212568, pdf) Annexure B Part 2 (3489377, pdf) Annexure B Part 3 (5551754, pdf) Annexure B Part 4 (2438625, pdf) Annexure B Part 5 (765400, pdf) Annexure B Part 6 (5663439, pdf) Annexure B Part 7 (16135598, pdf) ********** Amendments 08 July 2021 - Amended typographical errors at paragraphs [8] and[10] and in Annexure A. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 July 2021